R. v. Keewatin

2024 BCSC 2601 R. v. Keewatin IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Keewatin, 2024 BCSC 2601 Date: 20241001 Docket: 77300 Registry: Prince George Rex v. Dakota Rayn Keewatin Kerridge Andrew Lowley Before: The Honourable Justice Gibb-Carsley Oral Ruling on Voir Dire #2 Re: Witness Accommodation Counsel for the Crown: A.E. Norlund Counsel for the Accused, D. Keewatin: J.C. LeBlond, K.C. Counsel for the Accused, K. Lowley: T.E. La Liberté, K.C. Place and Date of Hearing: Prince George, B.C. September 27, 2024 Place and Date of Judgment: Prince George, B.C. October 1, 2024 I. Introduction [1] THE COURT (by videoconference): Mr. Dakota Rayn Keewatin and Mr. Kerridge Andrew Lowley are charged with two counts related to the alleged assault of the complainant, A.C., on or around August 11, 2022, in Prince George, British Columbia. Specifically, Count 1 relates to the Crown's allegation that the accused committed aggravated assault contrary to s. 268(2) of the Criminal Code. Count 2 stems from the Crown's allegation that Mr. Keewatin and Mr. Lowley broke into a dwelling house to commit the indictable offence and assault, contrary to s. 348(1)(b) of the Criminal Code. [2] As I will describe below, the Crown alleges that the accused broke into a room the complainant was occupying at the Econo Lodge in Prince George and assaulted him with a machete, causing him serious injury. [3] Mr. Keewatin and Mr. Lowley have pleaded not guilty and elected to have the trial heard by judge alone. The trial is scheduled to commence October 21, 2024, and is scheduled for five days. [4] There are two applications brought by the Crown. In the first, pursuant to s. 486.1 of the Criminal Code, the Crown seeks to have a support person with the complainant while he testifies. The second application is brought under s. 486.2 of the Criminal Code for an order to provide the complainant with testimonial accommodations such that he be permitted to testify behind a screen in the courtroom allowing him to not see either of the accused while he testifies. [5] The accused do not oppose that the complainant be permitted to have a support person with him during his testimony. However, the accused raised issues during the hearing about the suitability of the specific person requested by the complainant for support. I will discuss this issue below. [6] The accused oppose the Crown's application to have the complainant testify behind a screen. [7] In support of the application for testimonial accommodation, the Crown provided an affidavit affirmed by Constable Kyle Gadallah of the RCMP who was the lead investigator for the file. In the affidavit, Constable Gadallah sets out the reasons the complainant could not testify at the hearing without accommodation or, put in the language of 486.2(2) of the Criminal Code, why accommodation would facilitate this witness giving a full and candid account of the acts complained of or otherwise be in the interest of the proper administration of justice in this matter. [8] The thrust of the affidavit is that, due to the violence of the alleged assault, the injuries the complainant suffered (including a diagnosis of PTSD and depression that is inferred to be the result of the assault), and the complainant's belief that there is a continued threat from the accused, the testimonial accommodation would reduce the complainant's stress and anxiety. [9] Before turning to my analysis, it is important to briefly describe the allegations that form the basis of the charges against the accused, especially so given the alleged use and level of violence involved. II. Background of the Alleged offences [10] On October 11, 2022, Prince George RCMP received a call from the Econo Lodge motel. Members responded and located the complainant suffering a severe injury to his right arm, as well as other injuries. He was bleeding but conscious. A bloody machete was located outside the room. Based on video evidence and other evidence obtained in search warrants, the Crown asserts that Mr. Keewatin and Mr. Lowley were at the hotel room immediately prior to, during, and after the assault of the complainant. [11] The police obtained some evidence and subsequent search warrants that they allege shows the complainant had a debt of $1,800 to Mr. Keewatin. There is some evidence that the complainant met Mr. Keewatin in prison and that Mr. Keewatin later introduced him to Mr. Lowley. The Crown alleges that the complainant later fell into debt to Mr. Keewatin. [12] After a chance encounter in Prince George between the complainant and the accused on August 11, 2022, the accused visited the Econo Lodge where the complainant was residing. When Mr. Keewatin approached the door of the hotel room, the complainant allegedly opened the door and sprayed him with bear spray. It is then that the Crown alleges that both the accused went into the hotel room and assaulted the complainant with the complainant's own machete. The Crown alleges that the complainant was slashed with the machete, kicked, and possibly stabbed with another knife during the assault. [13] The complainant sustained serious injuries, including a stab wound to his lower chest and upper abdomen, laceration to his liver, wound on his upper thigh, extensive deep lacerations to his right arm, transection radius, and ulna. He required orthopedic surgery and the recovery was extensive. He still does not have complete use of his hand and he was diagnosed with PTSD and depression in November 2023. [14] In terms of the procedural history of this legal proceeding, prior to the preliminary inquiry in Provincial Court, the Crown brought the same applications for a support person to testify with the complainant and for testimonial accommodation. The Honourable Judge Nadon granted the application, thus allowing the complainant to testify from within the courtroom but behind a screen. [15] In these reasons for judgment on these applications, I will set out the law and governing legal principles on an application to accommodate a witness who is over the age of 18, both by having a support person and testifying behind a screen. I will then turn to my analysis and determination of the applications before me. III. Legal principles [16] As a starting point, ss. 486.1 and 486.2 of the Criminal Code permit accommodations of vulnerable witnesses who may experience mental or emotional distress if compelled to testify in open court and in the presence of the accused. The complainant is 27 years old. As such, both the permission to have a support person accompany him and the testimonial accommodations are discretionary, unlike if a witness is under the age of 18 where the granting of an application by the Crown is obligatory, as set out in ss. 486.1(1) and 486.2(1) of the Criminal Code. [17] Section 486.1(2) governs the court's ability to permit a person to support a witness during the giving of testimony in court: (2) In any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that a support person of the witness' choice be permitted to be present and to be close to the witness while the witness testifies if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [18] Of note, the provision requires that the support person be a support person "of the witness' choice". However, s. 486.1(4) provides that the court shall not permit a witness to be a support person unless the judge or justice is of the opinion that doing so is necessary for the proper administration of justice. [19] I mention these elements of the provision because, as I set out at the start of my reasons, while the accused do not object to the complainant having a support person, they appear to take issue with the individual who the Crown proposes, Ms. Aralee Hryciuk, a Victim Service worker who is known to the complainant and acted as his support worker during the preliminary inquiry. As I understand it, Ms. Hryciuk is the complainant's choice as the person to support him during the testimony. I will return to a discussion of these issues in my analysis. [20] In respect of testimonial accommodations related to the complainant testifying behind a screen, under s. 486.2, it is the Crown's burden to establish that the witness accommodation is required in the circumstances. Section 486.2(2) of the Criminal Code provides as follows: (2) Despite section 650, in any proceedings against an accused, the judge or justice may, on application of the prosecutor in respect of a witness, or on application of a witness, order that the witness testify outside the court room or behind a screen or other device that would allow the witness not to see the accused if the judge or justice is of the opinion that the order would facilitate the giving of a full and candid account by the witness of the acts complained of or would otherwise be in the interest of the proper administration of justice. [21] Importantly, the provisions of witness accommodation in the Criminal Code were modified in 2015, specifically to soften the language from requiring the accommodation to be "necessary" to obtain a full and candid account from the witness, to a lesser standard premised on the giving of a full and candid account by the witness of the facts complained of or otherwise if it would be in the interest of the proper administration of justice: R. v. Zakuti, 2021 BCSC 2309 at paras. 22-24. [22] At para. 21 of Zakuti, the Court held: [21] An overarching purpose of this provision is to encourage the participation of witnesses in criminal trials and, in particular, its intention is to facilitate the testimony of vulnerable adult witnesses who require accommodation in order to be able to give a full and candid account of the acts complained of: R. v. Dosanjh, 2018 BCSC 1625 at para. 14. [23] Section 486.2(3) lists the factors a court should consider in determining whether to make an order for witness accommodation under s. 486.2(2). These factors include the following that are relevant to this application: the age of the witness; the witness's mental or physical disabilities, if any; the nature of the offence; the nature of any relationship between the witness and the accused; whether the witness needs the order for their security or to protect them from intimidation or retaliation; society's interests in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process; and any other factor the judge or justice considers relevant. [24] Further, although s. 486.2(6) is primarily relevant in jury trials, it provides that no adverse inference may be drawn from the fact that an order is or is not made to accommodate a witness in giving testimony. [25] In terms of evidence required to support the Crown's application, our Court of Appeal recently set out in R. v. J.L.K., 2023 BCCA 87 that while there must be some evidence upon which to base a decision to accommodate a witness, the evidence can be through affidavit, viva voce evidence, or submissions of Crown, so long as the evidence is sufficiently reliable to support the application for testimonial accommodation. In J.L.K. at paras. 46 and 47, our Court of Appeal referred to R. v. George, 2020 BCSC 212 and R. v. F.M., 2021 BCSC 1867. [26] In George, Justice MacKenzie held: [23] this type of application is not a fait accompli simply by the Crown making the application. The Crown or a witness is still required to provide some evidence in support of the application. Generally speaking, when dealing with a witness over the age of 18, in my view, this would mean affidavit or viva voce evidence from the witness, with or without additional material. [27] In F.M., Justice Riley cited George and commented at para. 21: [21] The evidence is not required to take any particular form. It must provide "a reliable basis" for determination that the proposed testimonial aid will meet the statutory test: George at para. 26. [28] In summary, I accept that it is settled that I may base my conclusion on this application on the affidavit evidence of Constable Gadallah, as well as the submissions of counsel, so long as I find them reliable. The final point I observe from the authorities regarding witness accommodation is that it is well established that the inability of an accused person to confront their accuser in person in the courtroom does not undermine the right to make full answer and defence: see R. v. Levogiannis, [1993] 4 S.C.R. 475 and J.L.K. at para. 48. [29] It is with these legal principles in mind that I now turn to my analysis and determination. IV. Analysis and determination A. Testimonial Accommodation - Support Person [30] I will first address the issue of the Crown's request for a support person to accompany the complainant while he testifies. To reiterate, the accused do not oppose the Crown's application to have a support person present with the complainant as he testifies. However, as the hearing progressed, it appeared that the accused increased their opposition to Ms. Hryciuk acting as the support person. [31] As I understand their complaint, it is two‑fold. On a more general and theoretical basis, the accused are concerned that Ms. Hryciuk is an employee of the RCMP and thus is fundamentally biased in favour of the RCMP and the Crown, or at least her participation will give the appearance of bias or a conflict of interest if she is involved in assisting the witness. Second, counsel argued that in this case, based on submissions of the Crown, and I do not know the accuracy or details of these statements, that Ms. Hryciuk was present when the complainant was interviewed by the police while he was in hospital after the alleged assault, and so she could potentially be a witness at trial. [32] Counsel for the accused submitted that part of their lack of opposition to the support worker accompanying the complainant was premised on being reassured that the court would caution that support worker as to the proper role of providing support; specifically, that the person was there for emotional support but not as an advocate for the complainant or to assist the complainant with giving specific evidence or details while testifying. This is a reasonable request and, in my view, it is completely appropriate for the court to be satisfied that a person proposed as a support person understand his or her function and their role in the trial process. [33] I will grant the Crown's application that the witness have a support person. I will leave it to the parties to determine ultimately if Ms. Hryciuk is acceptable or if another support person is suitable. If they are unable to agree, the parties have leave to make further application with a better articulated application before me as to whether Ms. Hryciuk is suitable. However, I wish to provide the parties with my thoughts on the accused's concern that Ms. Hryciuk is not an appropriate support person. [34] First, I put little weight on the accused's counsel's argument that a support worker who is employed by the RCMP is automatically disqualified from being a support worker because she or he is in a conflict of interest. Presumably, Victim Service workers are professionals who know the scope of their role is to assist and support a victim of crime but also understand the important obligations to the court and the importance of non‑interference with the giving of evidence by a witness. [35] I would expect that support workers understand they are not an advocate for the police, even if they are employed by the police. The bare assertion that they are biased, without more, in my view is insufficient to disqualify that person from acting as a support person. [36] Importantly, s. 486.1(2) provides that a support person is to be of the witness's choice. This is sensible because clearly it should be a person who is known to the witness, such that effective support can be given. [37] If the complainant wishes to have Ms. Hryciuk as a support person and if the assistance of a support person is granted, which it has been, then it must be the person of the complainant's choice. This aspect of the legislation appears abundantly logical to me, because if there is no connection between the witness and the support person, it would seem to frustrate the very purpose of the accommodation, which is to assist and comfort a witness during a difficult and stressful event. [38] Also important in addressing the concerns of the accused that Ms. Hryciuk is an unacceptable support person is s. 486.1(5) of the Criminal Code that allows the court to order that the support person and the witness not communicate with each other while the witness testifies. In my view, this mitigates concerns held by defence counsel regarding improper influence of Ms. Hryciuk on the testimony of the complainant. [39] Counsel for Mr. Lowley argues that it may be that Ms. Hryciuk will be a witness. I do not know if there is merit to this assertion. If so, I accept that it could disqualify her from acting as a support person. Section 486.1(4) of the Criminal Code provides that the court shall not permit a witness to be a support person unless it is necessary for the proper administration of justice. If there is a reasonable basis to assert that Ms. Hryciuk will be a witness, then it strikes me she should not be the complainant's support person. [40] I expect that the parties will be able to agree if there is a reasonable likelihood that Ms. Hryciuk will be a witness or if another support person is acceptable to the parties. I reiterate, however, that the Code is clear that the support person is to be the choice of the witness and should an application again come before me on this issue, my starting point will be to have the complainant's choice of support person, barring a cogent reason that an appropriate caution from the court as to the appropriate role would be insufficient. [41] In summary, I grant the order that the complainant may have a support person with him during testimony. Unless there is further application brought before me setting out evidence as to why Ms. Hryciuk is an improper support person, she shall be the support person for the complainant. It may be that the parties decide that another support person is better suited and agreeable to the complainant and the accused. If the parties reach an impasse or if the accused believe that Ms. Hryciuk is not a suitable support person, either because she may be a witness or for other reasons, they have leave to appear before me for the purpose of determining the appropriate support person. [42] I trust that counsel for the accused and the Crown can work together on this issue and take reasonable positions, based on actual circumstances of this case and not on speculative concerns that may not be tethered to reality. [43] I now turn to the consideration of whether the complainant should be permitted to testify behind a screen during trial. B. Testimonial Accommodation - Testifying Behind a Screen [44] The Crown contends that accommodation is required for the complainant because of the stress and anxiety he will experience, and having to provide testimony in the presence of the accused will not facilitate his ability to provide candid evidence and will hinder his ability to testify fully. [45] Constable Gadallah's affidavit sets out evidence that the Crown says supports the application. The information was gathered by Constable Gadallah in conversations with the complainant on July 4, 2023, and January 2, 2024. I note that the affidavit provides the first conversation occurred on July 4, 2024. However, my review of the evidence, including the transcript of the Provincial Court application for testimonial accommodation, satisfies me that the first conversation occurred on July 4, 2023, and there is a typographical error in the affidavit filed in support of Crown's application. [46] Constable Gadallah includes the following information that the complainant provided to him in January 2024 as to why the complainant seeks testimonial accommodation: a) the complainant wishes to testify from behind a screen with a support person present; b) he does not want to have to see the accused and feels uncomfortable about seeing the accused or their family when he is testifying; c) he would be better able to focus on his evidence if he was able to testify from behind a screen; d) he is afraid of retaliation and particularly concerned about being reported or photographed and the materials being posted online; e) he is afraid of seeing the accused persons in the courtroom; f) he feels anxious, sad, afraid, and, in general, emotional about seeing the accused persons in the courtroom; g) he would be more nervous if he had to see the accused persons in the courtroom; h) he would be able to give better evidence if he was less anxious or afraid; i) he was diagnosed by a doctor in November 2023 with PTSD and depression and has been prescribed medications to assist him with management of his symptoms; j) he has been in recovery from substance abuse for 16 or 17 months; k) a police officer told him there was a $10,000 hit on his head and he had concerns about the safety of his immediate family; l) he is concerned about retaliation against his immediate family as he did not believe the accused persons would be able to get to him; m) he believes the accused persons have access to resources and will go after his immediate family; and n) he is still recovering from his injuries he suffered on August 11, 2022, experiences pain every night, and has been told he may need another surgery. He cannot make a fist and cannot lift 50 pounds. [47] I pause to note that counsel for Mr. Keewatin argued that the information provided by Constable Gadallah was dated because it was obtained in a meeting in January 2024. Thus, several months before this application. However, this argument appears to overlook the fact that in the affidavit of Constable Gadallah, he describes that he had further conversations with the complainant on July 29, 2024, who informed him about his current well‑being and that the testimonial accommodations from the preliminary inquiry helped him testify. [48] During this conversation, the complainant spoke about how he continued to fear harm from both accused persons and was very intimidated by them. He requested the same testimonial accommodation arrangement he had at the preliminary inquiry of the matter before the Provincial Court. [49] I take from the statement and the affidavit that the testimonial accommodation at the preliminary inquiry were of assistance to the complainant. Constable Gadallah also affirmed that the complainant advised him that while he is willing to testify, he fears testifying in open court and feels anxious and afraid and fears retaliation. [50] Counsel for the accused argues that given credibility is the crux of this case as to what occurred in the hotel room on August 11, 2022, the complainant must be required to face those he accused. Further, they point to the complainant's significant criminal record, contending that he has familiarity with the courtroom and court proceedings, and his fear of testifying and facing the accused is disingenuous. The accused also says that the complainant's criminal record contains many convictions for violence, including manslaughter and, as such, his statements of being afraid or fearful of the accused should not be accepted. [51] Put bluntly, the accused argue that the plausible reason the complainant does not want to face the men he is accusing is because they were once friends or at least acquaintances, and it will be easier to lie during his testimony if he does not have to face them. [52] I will now turn to the relevant factors under s. 486.2(3) as they apply to the facts in this case. [53] Section 486.2(3)(a) requires the court to consider the age of the complainant. The complainant is now 27 years old. The Crown is not relying on the complainant's age as a factor supporting his request for testimonial accommodation. I agree and find that the complainant's age does not support his requirement to testify behind a screen. [54] Section 486.2(3)(b) requires the court to consider the witness's mental or physical disabilities, if any. In this case, I was provided with evidence that the complainant suffers from depression and PTSD. Further, the injuries to the complainant's arm were serious. As set out in Constable Gadallah's affidavit, the complainant is still recovering from the injuries he suffered on August 11, 2022. He experiences pain every night and has been told he may need another surgery. He still cannot make a fist and cannot lift 50 pounds. In my view, the physical injuries, in addition to the mental health issues, would be a constant reminder of the assault about which he has to testify. In other words, in my view, the complainant, due to the injuries he suffered on August 11, 2022, is constantly reminded of those events, both physically and mentally. [55] I acknowledge that in respect of the mental health issues, the evidence appears to be self‑reported and I have not been provided with medical evidence before me regarding the complainant's diagnosis, although Constable Gadallah affirmed the complainant was diagnosed with PTSD and depression in November 2023 by a doctor. [56] Again, I note that the PTSD and depression are not directly linked to the alleged offences in the affidavit, although Crown in submissions asked the court to find that nexus. In considering this evidence, I accept that the conditions exist in the complainant based on the evidence before me. Further, while the mental health issues are not specifically linked in the affidavit to the alleged offences, it does not seem an unreasonable inference to accept that the complainant would certainly have suffered some form of trauma as a result of the horrific injuries he received in the alleged assault. [57] As set out above, the complainant informed Constable Gadallah that he feels "anxious, sad, afraid, and in general emotional about seeing the accused persons in the courtroom." Further, he informed Constable Gadallah that "he would be able to give better evidence if he was less anxious and afraid." [58] The accused's counsel argued that all witnesses feel anxious while testifying. In my view, the severity of the alleged assault and the complainant's mental health issues and concerns about testimony rise above what would be normal feelings of nervousness in testifying as a witness in a criminal trial. In my view, a consideration of this factor strongly supports allowing testimonial accommodations as requested by the Crown. [59] Under s. 486.2(3)(c), the court is to consider the nature of the offence. The nature of this particular offence provides important context for a determination as to whether to allow the complainant to testify from behind a screen. This case involves allegations of a serious and violent physical assault. As referenced above, the injuries suffered by the complainant were significant and included an open fracture to his arm. More specifically, the complainant suffered a severe laceration to his arm which required surgery to repair tendons. He received a lacerated liver and laceration to his patella and right thigh. He had lacerations to the tendons of his leg. Suffice it to say, the injuries received by the complainant from the blows he suffered from the machete, allegedly at the hands of the accused, were severe and significant. [60] The significance of the complainant's injuries and the brutality of the alleged assault favour the complainant being permitted to testify from behind a screen because he would otherwise be required to face the individuals who allegedly injured him so significantly. In my view, there is an unnecessary risk of re-traumatization and, moreover, it would disregard the complainant's concern that testifying behind a screen would facilitate him in giving evidence, which I reiterate is the purpose of s. 486.2(2) of the Criminal Code. [61] The nature of the offence also folds into the consideration the court is to have pursuant to s. 486.2(3)(g) which is society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice system. [62] While much of the authority surrounding courts' consideration of testimonial accommodation involve victims of sexual assault and the need to encourage victims of those historically and statistically under‑reported types of crime to come forward and testify in a way that protects their emotional well‑being, I accept that victims of serious violent physical assaults should also have the protections envisioned by s. 486.2 to protect victims of crime and facilitate testimony of those victims. [63] Again, while in the context of sexual assault and a concern that, in particular, victims of sexual assault historically underreport crimes of that nature, I am guided by the words of Justice Donegan in Zakuti: [58] I also consider the importance of society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process. Many courts have discussed the reasons for under-reporting and lack of participation by complainants of crimes of sexual violence in the court process. For example, in Canadian Newspapers v. Canada (Attorney General), [1988] 2 S.C.R. 122, 52 D.L.R. (4th) 690, the Supreme Court of Canada, in assessing whether publication bans in sexual assault cases passed Charter scrutiny, held at para. 18, that despite being one of the most serious crimes, sexual assault is one of the most unreported [64] In my view, the purpose of witness accommodation is not limited only to victims of sexual assault or children. Clearly it was open to the legislators to draft the legislation in that manner and they did not put such a limitation on the extent of witness accommodation. In my view, it is an important consideration that serious crimes are reported and that witnesses are able to testify candidly without impediment to that ability if the evidence supports such a finding that without testimonial accommodation, the giving of evidence would be hampered. Indeed, Canadian society has a strong interest in encouraging individuals to report offences and to participate in court proceedings, especially so in offences that allege serious violence and vulnerable complainants. [65] Again, the ultimate purpose of s. 486.2 is to facilitate testimony. I am concerned that, as a result of the stress or perceived level of stress response if not accommodated, the complainant may be hindered in his ability to provide evidence and testify. In my view, that is not in the interest of justice. [66] Section 486.2(3)(d) asks the court to consider the nature of the relationship between the witness and the accused. There is evidence before me that the accused were known to the complainant through involvement in the drug trade or at least related to the use of drugs. I also have some evidence, although it has not been tested, that the accused have threatened the complainant with death and there is reference to a bounty on the complainant of $10,000. Further, the complainant fears retaliation against him and his family. I recognize that these factors, whether legitimate or only perceived as real by the complainant, support witness accommodation. In other words, his fear of the accused is amplified by his concerns of his future safety which came to his knowledge through a duty to warn issued by the police. [67] Counsel for the accused argued that the relationship between the complainant and accused militates against providing witness accommodation. As I understand the argument, it is because the accused and the complainant were at one point friends or acquaintances, so it would be more difficult for the complainant to give false testimony against them if he were required to look at them while testifying. Put bluntly, the accused say the complainant wants accommodation so he does not have to look them in the eyes when he gives false testimony against them. [68] I give little weight to this argument, as it appears to ignore the alleged intervening event between the friendship relationship and the present state of affairs, which is the alleged machete attack which profoundly injured the complainant. In other words, I accept that there is a sufficient basis before me that the stress and fear from the attack is a more plausible reason why the accused should have testimonial accommodation, as opposed to the argument of the accused that it is to avoid misleading the court while looking at his former friends. [69] In the application before me, defence counsel argues that the description of the complainant as a vulnerable individual who would be afraid of the accused is misleading. Counsel for Mr. Lowley described the complainant as a career criminal who was convicted of killing a person and argued that the evidence will show that the complainant was the aggressor and was the one who first sprayed the accused with bear spray prior to the machete attack. He also argues that the significant and serious criminal record of the complainant demonstrates he is not someone who would be legitimately fearful. [70] I want to be clear that I am not making any ultimate findings of fact at this juncture. It will be for trial that I am required to make findings of fact as to what occurred during the alleged offences and consider any defences the accused may wish to raise. However, in the circumstances of this application, I found counsel's argument of the complainant's use of bear spray demonstrates that he did not or does not have a fear of the accused unpersuasive. I note that bear spray, used in its proper form, is used as a repellant for bears, usually in cases where an individual is fearful of that bear. [71] In summary, I find that the relationship between the accused and the complainant, given both the alleged violent attack and severe injuries suffered in the attack, as well as the perceived threats the complainant believes were made against him that resulted in the police issuing a duty to warn, support an order permitting testimonial accommodation. [72] Finally, while not binding on my decision, I have the benefit of reading the reasons of Judge Nadon who granted testimonial accommodation for the complainant at the preliminary inquiry. Judge Nadon, at paragraph 8, described that the relationship between the accused and the complainant was nuanced. I understand from his description that the relationship cuts both ways, in that the complainant has a serious criminal history and was on parole for manslaughter during the alleged offence. Further, Judge Nadon considered that the complainant should know that testifying against former associates may have consequences. I am less troubled by this issue in finding that it supports the Crown's application for witness accommodation. The complainant is apparently now sober and no longer in a criminal lifestyle. [73] In my view, the accommodating of his testimony, such as to encourage him to testify in these proceedings, advances the administration of justice. Witnesses that fear reprisal, such that it would hinder the ability to candidly provide evidence or impact the ability of the trier of fact to have candid evidence, less influenced by stress or trauma response, is, in my view, the purpose of this section of the Criminal Code. [74] I am aware that adult testimonial accommodation should not automatically be granted when applied for by the Crown. I accept defence counsel's argument that in most cases, it will be stressful for a complainant to testify. This is our adversarial process of justice. [75] Further, I accept that the formality and environment of a courtroom and the court process may well be structured to ensure that a witness understands the solemnity of the occasion and the importance and gravity of giving testimony. [76] In this regard, I accept that while amendments to s. 486.2 have lowered the threshold of granting orders for witness accommodation, the court should not act as a rubber stamp if Crown brings an application: Zakuti at para. 27. [77] However, it is of fundamental importance that the trial process is conducted in such a manner that balances an accused's right to make full answer and defence while facilitating the ability of the witness to give a candid account of the matters in issue. In cases such as this where there is a serious and violent assault and there is evidence that the witness has mental health and physical injuries, and they have been impacted such that witness accommodation would facilitate them in giving candid testimony, the accommodation should be granted. [78] The object of the provision permitting testimonial accommodation cannot be forgotten in this application. It is to facilitate the testimony of a vulnerable adult witness who requires accommodation to be able to give a full and candid account of the acts that are at issue at trial. [79] In considering the evidence presented by the Crown, in light of the guiding principles and factors for my consideration as discussed above under s. 486.2(3), I conclude that some form of witness accommodation is required to facilitate the giving of a full and candid account by the complainant and it is in the interest of the administration of justice to make such an order. [80] The Crown proposes that the complainant will be physically in the courtroom testifying from behind a screen. Defence counsel, Crown, and the trier of fact will be able to see the complainant. The accused will be able to see video of the complainant as he testifies. I understand that reliability and credibility are expected to be central and important issues in this trial. [81] The form of testimonial accommodation allows counsel and the judge to observe the complainant physically respond to questions. This is important, in my view, and there is no prejudice to the accused or their counsel, because they will be able to provide documents to the complainant and observe the complainant throughout his testimony. There is no impediment to the accused's right to make full answer and defence. [82] In response to the contention the complainant should have to face the individuals against whom he is testifying, as I set out above, it is well established that the inability of the accused person to confront their accuser in person in the courtroom does not undermine the right to make full answer and defence: see Levogiannis; and J.L.K. at para. 48. [83] Given the foregoing, I am satisfied the application should be granted and that the complainant may testify behind a screen from within the body of the courtroom. I conclude this strikes the balance between accommodating a vulnerable witness who was the victim of an alleged serious violent crime with the accused's ability to make full answer and defence. V. Conclusion [84] I thank counsel for their helpful submissions during this application. That concludes my reasons for judgment. "Gibb‑Carsley J."